Shri Gulrez Khan, Indore V. The ITO-(5), Indore

ITA 238/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6764 (ITAT-INDORE)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 07-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R.S. AMBEDKAR
• Keywords: Opportunity of being heard; Reasonable cause; Set aside
• Section: 56; 143(3); 143(2); 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.238/IND/2019 ASSESSMENT YEAR 2015-16 REVENUE BY SHRI R.S. AMBEDKAR , SR.DR ASSESSEE BY S/ SHRI S.N. AGRAWAL & PANKAJ MOGRA, ARS DATE OF HEARING 5 .2 .20 20 DATE OF PRONOUNCEMENT 7 .2. 2020 O R D E R PER MANISH BORAD, AM THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2015-16 IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEA LS)-II (IN SHORT LD.CIT(A)], INDORE DATED 24.12.2018 WHICH IS ARIS ING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHOR T THE ACT) DATED 13.12.2017 FRAMED BY ITO -5(5), INDORE. SHRI GULREZ KHAN, 37, BROOK BOND COLONY, MANIK BAGH MAIN ROAD, INDORE VS. ITO - 5(5) , INDORE (APPELLANT) (RESPONDENT ) PAN NO. ALCPK5143K SHRI GULREZ KHAN ITA NO. 238/IND/2019 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L; 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED CIT(A) ERRED IN MAINTAINING THE ADDITION AS MADE B Y THE LD. AO. OF RS.48,34,500/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF INADEQUATE CONSIDERATION U/S 56 ( 2)(VII)(B) OF THE INCOME TAX ACT WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CA SE AND SUBMISSION MADE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION MADE B Y THE LD A.O. U /S 56 (2)(VII)(B) OF THE L T. ACT EVEN WHEN AS ON THE DA TE OF AGREEMENT THE SAID PROVISION WAS NOT IN FORCE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION AS MADE BY THE LD ASSESSING OFFICER U/S 56 (2)(VII)(B) OF THE WITHOUT CONSIDERING THE FACT THAT ASSESSEE HAS MADE ADVANCE PAYMENT IN RESPECT OF SUC H PURCHASE ON 23.07.2012 LE. IN THE A.Y. 2013-14 THROUGH AN ACCOU NT PAYEE CHEQUE HENCE THE GUIDELINE WHICH WOULD HAVE BEEN ADOPTED B Y THE A.O SHOULD BE FOR A.Y. 2013-14 AND NOT A.Y. 2015-16 AS DONE BY TH E LD. A.O. THE ASSESSEE RESERVE ITS RIGHT TO ADD ALTER AND MOD IFY THE GROUND OF APPEAL. 3 . BRIEF FACTS RELATING TO THIS ISSUE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF AUTO DEAL. THE RETURN FOR ASSESS MENT YEAR 2015- 16 E-FILED ON 20.10.2015 DECLARING INCOME OF RS.3,1 5,590/-. CASE SELECTED FOR SCRUTINY UNDER CASS. STATUTORY NOTICE U/S 143(2) OF THE ACT WERE SERVED UPON THE ASSESSEE. ASSESSMENT COMPL ETED U/S SHRI GULREZ KHAN ITA NO. 238/IND/2019 3 143(3) OF ACT AT RS. 51,50,090/- AFTER MAKING ADDIT ION OF RS.48,34,500/- TO THE DECLARED INCOME. 4. AGGRIEVED BY THE ORDER OF LD. A.O ASSESSEE PREFERR ED BEFORE LD. CIT(A). THOUGH THE ASSESSEE GAVE WRITTEN SUBMISSION BEFORE LD. CIT(A) BUT DUE TO THE NON PRESENCE OF ASSESSEE ON S UBSEQUENT DATE OF HEARING GIVEN BY LD. CIT(A) THE IMPUGNED ORDER W AS PASSED EX- PARTE. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE PRAYED F OR RESTORING ALL THE ISSUES RAISED IN THE INSTANT APPEAL TO THE FILE OF LD. CIT(A) AS SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT PROVI DED. 7. LD. DEPARTMENTAL REPRESENTATIVE WAS FAIR ENOUGH IN NOT OPPOSING THE REQUEST OF LD. COUNSEL FOR THE ASSESSE E OF RESTORING THE ISSUES TO LD. CIT(A). 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE IMPUGNED ORDER IS EX-PARTE. A SSESSEE FILED WRITTEN SUBMISSIONS BEFORE LD. CIT(A). CERTAIN MOR E INFORMATION WERE REQUIRED BY LD. CIT(A) TO ADJUDICATE THE ISSUE . ASSESSEE DID NOT APPEAR ON THREE OCCASIONS. LD. CIT(A) ACCORDING LY PASSED EX- PARTE ORDER. LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE SHRI GULREZ KHAN ITA NO. 238/IND/2019 4 ASSESSEE HAS A STRONG CASE ON FACTS AND LAW AND IS VERY HOPEFUL TO SUCCEED IF PROPER OPPORTUNITY OF BEING HEARD IS PRO VIDED BY LD. CIT(A). 9. SINCE DEPARTMENTAL REPRESENTATIVE HAS NOT OPPOSED TO THIS REQUEST, WE IN THE INTEREST OF JUSTICE AND BEING FA IR TO BOTH THE PARTIES SET ASIDE THE INSTANT APPEAL TO LD. CIT(A) FOR AFRESH ADJUDICATION AND PASSING OF A SPEAKING ORDER AFTER PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. ASSESSEE IS ALSO DIRECTED TO REMAIN VIGILANT TO THE NOTICES OF HEARING ISSUED BY LD. CIT(A) AND NOT TO TAKE ANY ADJOURNMENT UNLESS O THERWISE REQUIRED FOR REASONABLE CAUSE. ASSESSEE IS ALSO DI RECTED TO FURNISH ALL THE DETAILS AND DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CONTENTION BEFORE LD. CIT(A) AT THE TIME OF FIRST H EARING ITSELF. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.02.20 20. SD/- SD/- ( KUL BHARAT) (MANI SH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 07 FEBRUARY , 2020 /DEV SHRI GULREZ KHAN ITA NO. 238/IND/2019 5 COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE